THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar V
(08.09.10)
(10.00am - 12.15 pm)
The Foreign Educational Institutions (Regulation of Entry and Operations) Bill, 2010[1]
Moderator : Ajeet Pandey
Presenter : Aparna Gaind
Discussants : Anuranjan Sharma and Prabhat K. Singh
Rapporteur : Tushti Chopra
I. Background
A NUMBER OF foreign educational institutions are operating in the country in collaboration with Indian Universities. But due to dearth of a comprehensive and effective policy for their regulation, it was difficult to assess the operations of these institutions. The Ministry of Human Resource Development has been making attempts to provide an appropriate legal framework for foreign educational institutions in India. There were some recommendations of NKC and Yashpal Committee with regard to higher education and regulation of foreign institutions as well. The Foreign Educational Institutions (Regulation of Entry and Operations, Maintenance of Quality and Prevention of Commercialization) Bill, 2007 was introduced in the Parliament, but it was withdrawn due to severe opposition. Recently, a fresh Bill namely the Foreign Educational Institutions (Regulation of Entry and Operations) Bill, 2010 has been introduced in the Lok Sabha on May 3, 2010.
II. Overview of the Bill
The Foreign Educational Institutions (Regulation of Entry and Operations) Bill, 2010 seeks to regulate the entry and operation of foreign educational institutions[2] seeking to impart higher education (higher education includes technical and medical education and the award of degree, diploma and equivalent qualification). As per the provisions of the Bill, every foreign educational institution intending to operate in India has to be notified as a foreign educational provider by the central government.[3] The foreign educational institutions have to maintain a corpus fund of a minimum of Rs 50 crores.[4] Maximum of 75% of any income received from the corpus fund shall be utilized for developing its institution in India and rest shall be deposited into the fund.[5] Revenue generated, after meeting all the expenditure, cannot be invested for any purpose other than development of the educational institution established by the foreign universities in India. [6] The Bill provides for mandatory publication of prospectus, its content and its pricing.[7] The Bill also provides for withdrawal of recognition in case a foreign educational provider violates any provision of the regulations.[8] The central government may exempt any institution from conforming to the requirements of the Bill except the penalty provision and the revenue provision.[9] Any person who offers admission to an unrecognised institution or makes misleading advertisement shall be liable to a minimum fine of Rs 10 lakh (upto Rs 50 lakh) in addition to refunding the fees collected. Any recognised foreign educational provider who violates the law shall be liable to a fine between Rs 10 and 50 lakh and forfeiture of the corpus fund. [10]
III. Issues
Whether the provisions of the Bill provide for an effective regulation of entry and operation of foreign educational institutions in India?
Should the foreign educational institutions be required to comply with the affirmative action policy of the State?
Does the proposed entry of foreign educational institutions will induce unhealthy competition in the education sector? Considering the fact that budgetary allocation for higher education in India is very less, do you think that higher education institutions in India are placed on a level playing field to compete with foreign educational institutions?
Suggested Readings:
1. J. B.G. Tilak, “The Foreign Educational Institutional Bill: A Critique”, XLV (19) EPW 12 (2010).
2. Recommendations for The Foreign Educational Institutional (Regulation of Entry and Operations) Bill, 2010 available at: www.edgeforum.in.
3. “Protest against commercialization, privatization of education”, The Hindu, Aug 28, 2010.
4. The National Knowledge Commission Report on Higher Education, 2006 available at: www.britishcouncil.org/learning-nkc-recommendation-education.
5. Report of “The Committee to Advise on Renovation and Rejuvenation of Higher Education” (Yashpal Committee’s Report) 2009 available at: www.academics-india.com.
[1] Bill No. 57 of 2010. Hereinafter “Bill”.
[2] “Foreign Educational Iinstitution” is defined as any institution established outside India, which has been offering educational services for a minimum of 20 years and proposes to offer courses which shall be taught through conventional teaching method (including classroom teaching). It excludes learning in distant mode in India.
[3] Cl. 3.
[4] Cl. 4 (3) (b).
[5] Cl. 5(2).
[6] Cl. 5(3).
[7] Cl. 6.
[8] Cl. 7.
[9] Cl. 9.
[10] Cl. 8.
Saturday, September 4, 2010
Friday, August 27, 2010
The National Food Security Bill, 2010
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar IV
(01.09.10)
(10.00am - 12.15 pm)
The National Food Security Bill, 2010[1]
Moderator : Saurabh Singh
Presenter : Pragya Singh
Discussants : Rebecca Lalrindiki and Aditya Gupta
Rapporteur : Abhishek Kumar Pandey
I. Background
INDIA HAS ACHIEVED food self-sufficiency 30 years ago through dramatic investments in technology, institutions and infrastructure. According to Food and Agriculure Organisation (FAO) of the United Nations, one fourth of the world’s undernourished population (251.5 million people) lives in India.[2] In recent years, the battle against hunger has been placed at the centre of the development discourse in India. This has come about as a direct result of a writ petition filed in the Supreme Court of India by the People’s Union for Civil Liberties[3], to recognise right to food as fundamental right under article 21. In addition to these judicial developments, Indian Legislature has taken steps to provide a statutory framework in the form of this Bill. The Bill entitles families living Below Poverty Line[4] (BPL) to certain minimum quantities of food grains per month through Targeted Public Distribution System[5] (TPDS).
II. Overview of the Bill
The Bill provides that every identified BPL family within the number fixed by the central government shall be entitled to receive every month 25 kgs food grains such as rice and/or wheat at subsidized issue prices. These prices will be fixed from time to time by central government.[6] The central government shall fix the number of the identified BPL families for each state for coverage under the TPDS on the basis of poverty estimates notified by the Planning Commission of India.[7] However, if any state government is to extend its support to additional families over and above that is provided under clause 3, it may do so with its own budgetory resources[8].The central government shall be responsible for procurement of wheat & rice for the central pool[9] and states. In an event of inability to deliver the required allocation for any state, the central government shall compensate by funds to the state.[10] The state government is also made responsible for making payment of “Food Security Allowance”[11] to the beneficiaries of the Bill, in case of failure to supply in any month the entitled quantities of foodgrains to such families.[12]For ensuring transparency in functioning of TPDS and accountability of the functionaries, every state government shall set up a vigilance committee as per the rules.[13] clause 16 further says that whosoever contravenes the provisions of this Act shall be liable for penalties as provided under section 7 of Essential Commodities Act,1955.
III. Issues
Whether the provisions of the (draft) Bill confer an enforceable right to food to every identified BPL familiy? If no, is the state justified in not conferring such a right?
Notwithstanding the Wadhwa Committee Report on the failure of TPDS in India, is it prudent on the part of Indian Parliament to adopt it again via this Bill for the purpose of distribution of food grains?
Looking into the present status of Indian economy and its dynamic growth, whether Indian Government is justified in not enforcing article 47 even after 60 years of independence?
Suggested Readings:
1. Reetika Khera, “Right to Food Act: Beyond Cheap Promises” 45 EPW 40 (2009).
2. PUCL v. The Union of India and Others,2000 (5) SCALE.
3. Justice Wadhwa Committee Report on Public Distribution System (PDS) (2009).
4. P. Sainath, “Food Security- of APL, BPL & IPL”, The Hindu, July 6, 2010 available at http://www.thehindu.com/opinion/columns/sainath/articles501693.ece.
5. D.D.Basu, 3 Commentary on the Constitution of India 4158-4166 (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 8th edn. 2008).
[1] The proposed Draft Bill. Hereinafter “Bill”.
[2] Food and Agriculture Organisation Report available at http//www.fao.org/countries/5528/en/ind.
[3] PUCL v. The Union of India and Others, 2000(5) SCALE.
[4] Cl. 2(b).
[5] Cl. 2(u).
[6] Cl. 3.
[7] Cl. 4(2).
[8] Cl. 4(3).
[9] Cl. 2(c).
[10] Cl. 6(2).
[11] Cl. 2(h).
[12] Cl. 7(8).
[13] Cl. 10.
LL.M. (Two Year Course)
Wednesday Seminar IV
(01.09.10)
(10.00am - 12.15 pm)
The National Food Security Bill, 2010[1]
Moderator : Saurabh Singh
Presenter : Pragya Singh
Discussants : Rebecca Lalrindiki and Aditya Gupta
Rapporteur : Abhishek Kumar Pandey
I. Background
INDIA HAS ACHIEVED food self-sufficiency 30 years ago through dramatic investments in technology, institutions and infrastructure. According to Food and Agriculure Organisation (FAO) of the United Nations, one fourth of the world’s undernourished population (251.5 million people) lives in India.[2] In recent years, the battle against hunger has been placed at the centre of the development discourse in India. This has come about as a direct result of a writ petition filed in the Supreme Court of India by the People’s Union for Civil Liberties[3], to recognise right to food as fundamental right under article 21. In addition to these judicial developments, Indian Legislature has taken steps to provide a statutory framework in the form of this Bill. The Bill entitles families living Below Poverty Line[4] (BPL) to certain minimum quantities of food grains per month through Targeted Public Distribution System[5] (TPDS).
II. Overview of the Bill
The Bill provides that every identified BPL family within the number fixed by the central government shall be entitled to receive every month 25 kgs food grains such as rice and/or wheat at subsidized issue prices. These prices will be fixed from time to time by central government.[6] The central government shall fix the number of the identified BPL families for each state for coverage under the TPDS on the basis of poverty estimates notified by the Planning Commission of India.[7] However, if any state government is to extend its support to additional families over and above that is provided under clause 3, it may do so with its own budgetory resources[8].The central government shall be responsible for procurement of wheat & rice for the central pool[9] and states. In an event of inability to deliver the required allocation for any state, the central government shall compensate by funds to the state.[10] The state government is also made responsible for making payment of “Food Security Allowance”[11] to the beneficiaries of the Bill, in case of failure to supply in any month the entitled quantities of foodgrains to such families.[12]For ensuring transparency in functioning of TPDS and accountability of the functionaries, every state government shall set up a vigilance committee as per the rules.[13] clause 16 further says that whosoever contravenes the provisions of this Act shall be liable for penalties as provided under section 7 of Essential Commodities Act,1955.
III. Issues
Whether the provisions of the (draft) Bill confer an enforceable right to food to every identified BPL familiy? If no, is the state justified in not conferring such a right?
Notwithstanding the Wadhwa Committee Report on the failure of TPDS in India, is it prudent on the part of Indian Parliament to adopt it again via this Bill for the purpose of distribution of food grains?
Looking into the present status of Indian economy and its dynamic growth, whether Indian Government is justified in not enforcing article 47 even after 60 years of independence?
Suggested Readings:
1. Reetika Khera, “Right to Food Act: Beyond Cheap Promises” 45 EPW 40 (2009).
2. PUCL v. The Union of India and Others,2000 (5) SCALE.
3. Justice Wadhwa Committee Report on Public Distribution System (PDS) (2009).
4. P. Sainath, “Food Security- of APL, BPL & IPL”, The Hindu, July 6, 2010 available at http://www.thehindu.com/opinion/columns/sainath/articles501693.ece.
5. D.D.Basu, 3 Commentary on the Constitution of India 4158-4166 (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 8th edn. 2008).
[1] The proposed Draft Bill. Hereinafter “Bill”.
[2] Food and Agriculture Organisation Report available at http//www.fao.org/countries/5528/en/ind.
[3] PUCL v. The Union of India and Others, 2000(5) SCALE.
[4] Cl. 2(b).
[5] Cl. 2(u).
[6] Cl. 3.
[7] Cl. 4(2).
[8] Cl. 4(3).
[9] Cl. 2(c).
[10] Cl. 6(2).
[11] Cl. 2(h).
[12] Cl. 7(8).
[13] Cl. 10.
Wednesday, August 18, 2010
Khalid Mundappilly v. Executive Engineer
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar III
(25.08.10)
(10.00am - 12.15 pm)
Khalid Mundappilly v. Executive Engineer
Moderator : Rashmi.R
Presenter : M. Ramesh
Discussants: Krishna Kumar and Navditya Tanwar
Rapporteur : Saransh Jain
I. Facts
A PUBLIC INTEREST LITIGATION was filed by a resident of Aluva challenging the permission granted by the respondents to hold public meeting on the P.W.D. road in front of Aluva Railway Station in Kerala. Petitioner produced several photographs showing the stage constructed on the side of road which partly occupied the tarred portion of the road and people sitting in large number in chairs on tarred portion of the public road, blocking the traffic and causing inconvenience to the public. The photographs produced also show that the Aluva road is busiest in the town. Therefore, the petitioner prayed for prohibting the holding of meetings on roads and road margins in future.
II. Judgment
After considering the facts of the case, the Kerala High Court decided to issue prohibitory orders against holding meetings on the public roads and road margins to ensure free flow of vehicles as well as to prevent loss of lives and injury to the people in the event of rash vehicles running into people assembled in meeting on roadside. However the court felt that the prohibitory order shall not only be benificial to the users of Aluva road but also to the people of the state of Kerala as a whole. Therefore, for effective implementation of the order, the court made the government as additional respondent. However, assuming that the government cannot have any objection against the court which is protecting public interest and lives of people, it was held that there was no necessity to hear the respondent since holding meetings on public roads and road margins itself is illegal. The court also felt that delay in the issuance of general prohibitory order would tantamount to delay in rendering justice to the people and in the interest of public the court instructed the Chief Secretary, Government of Kerala to issue instructions to the Director General of Police, departments of P.W.D, revenue and local administration to implement the judgment.
III. Issues
1. Whether the imposition of prohibition against holding meetings in public roads and road margins would amount to violation of freedoms guaranteed under article 19(1)(a) and 19(1)(b) of the Constitution of India?
2. Whether the court, in the instant case, is justified in reaching a priori conclusion that the state cannot have any objection in this matter and accordingly imposing general prohibitory orders against holding meetings in public roads and road margins without giving to the state a responsible opportunity to be heard?
3. Is the court justified in passing a general prohibitory order, so as to be applicable to whole of the state, against holding of the meetings on public roads without confining to the relief sought by the petitioner in the instant case? Whether such general prohibitory order would amount to judicial legislation which leaves no discretion for the executive?
Suggested Readings:
1. Durga Das Basu, Shorter Constitution of India 247-311 (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 14th edn., 2009).
2. J.N. Pandey, The Constitutional Law of India 169-203 (Central Law Agency, Allahabad, 45th edn., 2008).
3. Mahendra P. Singh, V.N. Shukla’s Constitution of India 134-147 (Eastern Book Co., Lucknow, 11th edn., 2008).
4. M.P. Jain & S.N. Jain, Principles of Administrative Law 385-445 (Wadhwa and Company, Nagpur, 6th edn., 2007).
5. C.K. Takwani, Lectures on Administrative Law 187-211 (Eastern Book Co, Lucknow, 4th edn., 2008).
LL.M. (Two Year Course)
Wednesday Seminar III
(25.08.10)
(10.00am - 12.15 pm)
Khalid Mundappilly v. Executive Engineer
Moderator : Rashmi.R
Presenter : M. Ramesh
Discussants: Krishna Kumar and Navditya Tanwar
Rapporteur : Saransh Jain
I. Facts
A PUBLIC INTEREST LITIGATION was filed by a resident of Aluva challenging the permission granted by the respondents to hold public meeting on the P.W.D. road in front of Aluva Railway Station in Kerala. Petitioner produced several photographs showing the stage constructed on the side of road which partly occupied the tarred portion of the road and people sitting in large number in chairs on tarred portion of the public road, blocking the traffic and causing inconvenience to the public. The photographs produced also show that the Aluva road is busiest in the town. Therefore, the petitioner prayed for prohibting the holding of meetings on roads and road margins in future.
II. Judgment
After considering the facts of the case, the Kerala High Court decided to issue prohibitory orders against holding meetings on the public roads and road margins to ensure free flow of vehicles as well as to prevent loss of lives and injury to the people in the event of rash vehicles running into people assembled in meeting on roadside. However the court felt that the prohibitory order shall not only be benificial to the users of Aluva road but also to the people of the state of Kerala as a whole. Therefore, for effective implementation of the order, the court made the government as additional respondent. However, assuming that the government cannot have any objection against the court which is protecting public interest and lives of people, it was held that there was no necessity to hear the respondent since holding meetings on public roads and road margins itself is illegal. The court also felt that delay in the issuance of general prohibitory order would tantamount to delay in rendering justice to the people and in the interest of public the court instructed the Chief Secretary, Government of Kerala to issue instructions to the Director General of Police, departments of P.W.D, revenue and local administration to implement the judgment.
III. Issues
1. Whether the imposition of prohibition against holding meetings in public roads and road margins would amount to violation of freedoms guaranteed under article 19(1)(a) and 19(1)(b) of the Constitution of India?
2. Whether the court, in the instant case, is justified in reaching a priori conclusion that the state cannot have any objection in this matter and accordingly imposing general prohibitory orders against holding meetings in public roads and road margins without giving to the state a responsible opportunity to be heard?
3. Is the court justified in passing a general prohibitory order, so as to be applicable to whole of the state, against holding of the meetings on public roads without confining to the relief sought by the petitioner in the instant case? Whether such general prohibitory order would amount to judicial legislation which leaves no discretion for the executive?
Suggested Readings:
1. Durga Das Basu, Shorter Constitution of India 247-311 (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 14th edn., 2009).
2. J.N. Pandey, The Constitutional Law of India 169-203 (Central Law Agency, Allahabad, 45th edn., 2008).
3. Mahendra P. Singh, V.N. Shukla’s Constitution of India 134-147 (Eastern Book Co., Lucknow, 11th edn., 2008).
4. M.P. Jain & S.N. Jain, Principles of Administrative Law 385-445 (Wadhwa and Company, Nagpur, 6th edn., 2007).
5. C.K. Takwani, Lectures on Administrative Law 187-211 (Eastern Book Co, Lucknow, 4th edn., 2008).
Friday, August 6, 2010
The Prevention of Torture Bill, 2010
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar I
(11.08.10)
(10:00 A.M. to 12:15 P.M.)
The Prevention of Torture Bill, 2010
Moderator : Slahuddin Ahmed.
Presenter : Saadiya.
Discussants : Anubha Dhulia and Jupi Gogoi.
Rapporteur : Utkarsh Yadav.
I. Background
Pursuant to the adoption of the Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment by the General Assembly in 1975, the United Nations General Assembly adopted the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment on December 10, 1984. India signed the convention on October 14, 1997 but has not ratified the same till date. Ratification of the convention requires enabling legislation to reflect the definition and punishment for “torture” as provided for in the convention. Although the Indian Penal Code contains certain provisions relating to the subject matter, the term “torture” is not defined in the manner it is provided in article 1 of the convention. In the given circumstance, the government of India felt it necessary that for the purpose of ratification of the convention, legislation should be enacted and therefore an attempt was first made in 2008 when the Prevention of Torture Bill 2008 was proposed which did not see the light of the day. A modified draft of the Bill, i.e. The Prevention of Torture Bill, 2010 was introduced in the Parliament and was passed by the Lok Sabha on May 6, 2010.
II. Overview of the Bill.
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to define the expression "torture" and provide for punishment to those involved in the incidents of torture and specifies the time limit for taking cognizance of the offence of torture. Clause 3 of the Bill defines “torture” as any intentional act for the purpose of extracting confession or information, which causes “grievous hurt” or “ danger to life, limb or health (whether mental or physical)” to any person by a public servant or a person abetted by a public servant. However proviso to the clause excludes those acts, which are inflicted in accordance with procedure established by law. Clause 4 of the Bill penalizes an act of torture which is inflicted on a person “for the purpose of extorting confession” or “any information which may lead to the detection of an offence or misconduct” and “on the grounds of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever.”
Clause 5 of the Bill requires the complaint to be made within 6 months from the date on which the offence is said to have been committed. The Bill requires prior government sanction for trying those accused of torture.
III. Issues
1. Whether the definition of torture given in clause 3 of the Bill is broad enough to include all kinds of acts that can be labelled as torture. Can torture be justified in any circumstances as provided for in the proviso to clause 3?
2. Whether the provision given under clause 4 of the Bill defeats the purpose of making torture a punishable offence when the Bill does not penalize “torture” per se as a criminal offence?
3. Is the Bill a sincere effort on the part of the legislature to ratify the convention? Is there any justification for not bringing it in conformity with the convention in toto?
Suggested Readings:
1. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984.
2. The Prevention of Torture Bill, 2010.
3. D.K. Basu v. State of West Bengal AIR 1997 SC 610
4. Ravi Nair, “Prevention of Torture Bill: A Feeble Attempt”, 55 EPW 25 (2010)
5. Arun Ferreira, “A Critical Appraisal of the Prevent ion of Torture Bill, 2010” 55 EPW 10 (2010).
6. M.P Jain, Indian Constitutional Law, 1118-1120 (Wadhwa Nagpur, New Delhi, 5th edn, 2008)
7. Michael Goodhart, Human Rights: Politics & Practice 298 (Oxford University Press, New York 2009).
LL.M. (Two Year Course)
Wednesday Seminar I
(11.08.10)
(10:00 A.M. to 12:15 P.M.)
The Prevention of Torture Bill, 2010
Moderator : Slahuddin Ahmed.
Presenter : Saadiya.
Discussants : Anubha Dhulia and Jupi Gogoi.
Rapporteur : Utkarsh Yadav.
I. Background
Pursuant to the adoption of the Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment by the General Assembly in 1975, the United Nations General Assembly adopted the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment on December 10, 1984. India signed the convention on October 14, 1997 but has not ratified the same till date. Ratification of the convention requires enabling legislation to reflect the definition and punishment for “torture” as provided for in the convention. Although the Indian Penal Code contains certain provisions relating to the subject matter, the term “torture” is not defined in the manner it is provided in article 1 of the convention. In the given circumstance, the government of India felt it necessary that for the purpose of ratification of the convention, legislation should be enacted and therefore an attempt was first made in 2008 when the Prevention of Torture Bill 2008 was proposed which did not see the light of the day. A modified draft of the Bill, i.e. The Prevention of Torture Bill, 2010 was introduced in the Parliament and was passed by the Lok Sabha on May 6, 2010.
II. Overview of the Bill.
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to define the expression "torture" and provide for punishment to those involved in the incidents of torture and specifies the time limit for taking cognizance of the offence of torture. Clause 3 of the Bill defines “torture” as any intentional act for the purpose of extracting confession or information, which causes “grievous hurt” or “ danger to life, limb or health (whether mental or physical)” to any person by a public servant or a person abetted by a public servant. However proviso to the clause excludes those acts, which are inflicted in accordance with procedure established by law. Clause 4 of the Bill penalizes an act of torture which is inflicted on a person “for the purpose of extorting confession” or “any information which may lead to the detection of an offence or misconduct” and “on the grounds of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever.”
Clause 5 of the Bill requires the complaint to be made within 6 months from the date on which the offence is said to have been committed. The Bill requires prior government sanction for trying those accused of torture.
III. Issues
1. Whether the definition of torture given in clause 3 of the Bill is broad enough to include all kinds of acts that can be labelled as torture. Can torture be justified in any circumstances as provided for in the proviso to clause 3?
2. Whether the provision given under clause 4 of the Bill defeats the purpose of making torture a punishable offence when the Bill does not penalize “torture” per se as a criminal offence?
3. Is the Bill a sincere effort on the part of the legislature to ratify the convention? Is there any justification for not bringing it in conformity with the convention in toto?
Suggested Readings:
1. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984.
2. The Prevention of Torture Bill, 2010.
3. D.K. Basu v. State of West Bengal AIR 1997 SC 610
4. Ravi Nair, “Prevention of Torture Bill: A Feeble Attempt”, 55 EPW 25 (2010)
5. Arun Ferreira, “A Critical Appraisal of the Prevent ion of Torture Bill, 2010” 55 EPW 10 (2010).
6. M.P Jain, Indian Constitutional Law, 1118-1120 (Wadhwa Nagpur, New Delhi, 5th edn, 2008)
7. Michael Goodhart, Human Rights: Politics & Practice 298 (Oxford University Press, New York 2009).
Thursday, March 25, 2010
Civil Liability for Nuclear Damage Bill
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar XI
(31.03.10)
10:00 am-12:15 pm
The Civil Liability For Nuclear Damage Bill ,2010
Moderator : Jupi Gogoi Presenter : Amandeep Kaur Sandhu
Discussants : Devendra Singh and M. Ramesh
Rapporteur : Shantanu Singh
I Background
The Indo-U.S. Civilian Nuclear Agreement was enacted successfully in October 2008. The agreement was to facilitate civilian nuclear partnership between United States and India along with many other mutual benefits on the condition that India will differentiate between its civilian and military nuclear facilities and put civilian facilities under the International Atomic Energy Agency (IAEA) inspection. In order to facilitate nuclear commerce and attract U.S. private companies involved in nuclear commerce, the UPA government prepared The Civil Liability for Nuclear Damage Bill, 2010. The cabinet ministerial meeting approved the Bill on November 19, 2009. The passage of the bill is crucial to operationalise the India-US civil nuclear agreement as the Bill will enable the country to accede to the Convention on Supplementary Compensation for Nuclear Damage 1997, without which the US private companies will not be able to sell nuclear equipments to India. In absence of such law, US firms will not get insurance cover for their projects in India.
II Overview of the Bill
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to give compensation to persons if they suffer nuclear damage as a result of a nuclear incident. Clause 4, inter alia, provides that the operator shall be liable for nuclear damage caused by a nuclear incident in that nuclear installation. However, the total liability of such operator is limited. Further the Bill provides that where a nuclear damage is caused by nuclear incident directly due to a grave natural disaster of an exceptional character or by acts of armed conflicts etc, the operator shall not be liable. Clause 6 specifies that the maximum amount of liability in respect of nuclear incident shall be the rupee equivalent of 300 million Special Drawing Rights and the liability of an operator for each nuclear incident shall be Rs. 500 crore. Clause 7 specifies that central government shall be liable where the liability exceeds the amount of liability of an operator. Under the Bill, the foreign supplier, however culpable it may be for a nuclear accident will enjoy legal immunity because the Bill channels all legal liability on the central government. The Bill further provides that the operator, through a contract, can make the foreign supplier responsible to pay compensation for an accident. But such amount can only be up to the operator’s own liability ceiling. According to Clause 35 no civil court shall have jurisdiction to entertain any suit or proceeding in respect of which the Claim Commissioner or the Nuclear Damage Claim Commission is empowered to adjudicate under the Bill. Another contentious clause is period of limitation to claim damages. It provides that the right to claim compensation for any nuclear damage shall extinguish if such claim is not made within a period of ten years from the date of notification of nuclear incident.
III Issues
1. How far the Parliament is justified in limiting the maximum liability at the rupee equivalent of 300 million Special Drawing Rights, which is not in accordance with internationally adhered benchmarks?
2. Is the Parliament justified in not making the supplier/operator directly and fully liable and shifting the liability to the Indian taxpayer?
3. Whether the limitation on the right to claim damages merely to 10 years after the happening of a nuclear incident is justified, since its effects on health, environment, etc take a long time to manifest?
Suggested Readings:
1. Brahma Chellaney, ”A Radioactive Bill Fraught With Big Risks”, The Hindu 13 March 2010.
2. Gopal Krishna, “Nuclear Liability Bill, US Senate, and Indian Parliament”, available at http://canarytrap.in/2010/03/17/nuclear-liability-bill-us-senate-and-indian-parliament/
3. Convention on Supplementary Compensation for Nuclear Damage,1997.
4. Brahma Chellaney, “Ignoring Lessons of Bhopal & Chernobyl”, The Hindu 16 February 2010.
5. Chernobyl- A continuing Catastrophe, UN Office for the Coordination of Humanitarian Affairs available at http://www.reliefweb.int/ocha_ol/programs/response/cherno/qms.pdf
LL.M. (Two Year Course)
Wednesday Seminar XI
(31.03.10)
10:00 am-12:15 pm
The Civil Liability For Nuclear Damage Bill ,2010
Moderator : Jupi Gogoi Presenter : Amandeep Kaur Sandhu
Discussants : Devendra Singh and M. Ramesh
Rapporteur : Shantanu Singh
I Background
The Indo-U.S. Civilian Nuclear Agreement was enacted successfully in October 2008. The agreement was to facilitate civilian nuclear partnership between United States and India along with many other mutual benefits on the condition that India will differentiate between its civilian and military nuclear facilities and put civilian facilities under the International Atomic Energy Agency (IAEA) inspection. In order to facilitate nuclear commerce and attract U.S. private companies involved in nuclear commerce, the UPA government prepared The Civil Liability for Nuclear Damage Bill, 2010. The cabinet ministerial meeting approved the Bill on November 19, 2009. The passage of the bill is crucial to operationalise the India-US civil nuclear agreement as the Bill will enable the country to accede to the Convention on Supplementary Compensation for Nuclear Damage 1997, without which the US private companies will not be able to sell nuclear equipments to India. In absence of such law, US firms will not get insurance cover for their projects in India.
II Overview of the Bill
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to give compensation to persons if they suffer nuclear damage as a result of a nuclear incident. Clause 4, inter alia, provides that the operator shall be liable for nuclear damage caused by a nuclear incident in that nuclear installation. However, the total liability of such operator is limited. Further the Bill provides that where a nuclear damage is caused by nuclear incident directly due to a grave natural disaster of an exceptional character or by acts of armed conflicts etc, the operator shall not be liable. Clause 6 specifies that the maximum amount of liability in respect of nuclear incident shall be the rupee equivalent of 300 million Special Drawing Rights and the liability of an operator for each nuclear incident shall be Rs. 500 crore. Clause 7 specifies that central government shall be liable where the liability exceeds the amount of liability of an operator. Under the Bill, the foreign supplier, however culpable it may be for a nuclear accident will enjoy legal immunity because the Bill channels all legal liability on the central government. The Bill further provides that the operator, through a contract, can make the foreign supplier responsible to pay compensation for an accident. But such amount can only be up to the operator’s own liability ceiling. According to Clause 35 no civil court shall have jurisdiction to entertain any suit or proceeding in respect of which the Claim Commissioner or the Nuclear Damage Claim Commission is empowered to adjudicate under the Bill. Another contentious clause is period of limitation to claim damages. It provides that the right to claim compensation for any nuclear damage shall extinguish if such claim is not made within a period of ten years from the date of notification of nuclear incident.
III Issues
1. How far the Parliament is justified in limiting the maximum liability at the rupee equivalent of 300 million Special Drawing Rights, which is not in accordance with internationally adhered benchmarks?
2. Is the Parliament justified in not making the supplier/operator directly and fully liable and shifting the liability to the Indian taxpayer?
3. Whether the limitation on the right to claim damages merely to 10 years after the happening of a nuclear incident is justified, since its effects on health, environment, etc take a long time to manifest?
Suggested Readings:
1. Brahma Chellaney, ”A Radioactive Bill Fraught With Big Risks”, The Hindu 13 March 2010.
2. Gopal Krishna, “Nuclear Liability Bill, US Senate, and Indian Parliament”, available at http://canarytrap.in/2010/03/17/nuclear-liability-bill-us-senate-and-indian-parliament/
3. Convention on Supplementary Compensation for Nuclear Damage,1997.
4. Brahma Chellaney, “Ignoring Lessons of Bhopal & Chernobyl”, The Hindu 16 February 2010.
5. Chernobyl- A continuing Catastrophe, UN Office for the Coordination of Humanitarian Affairs available at http://www.reliefweb.int/ocha_ol/programs/response/cherno/qms.pdf
Monday, March 15, 2010
Seminar X - Foreign Law Firms, RBI and India
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar X
(17.03.10)
(10.00am - 12.15 pm)
Lawyers Collective v. Bar Council of India & Others
Moderator : Farhat Jahan Rehmani
Presenter : Suparna Gaind
Discussants : Saurabh Singh and V. Elanchezhiyan
Rapporteur : Rahul Sharma
I. Facts
The genesis of the case can be traced back to when three foreign law firms, practicing in U.K/ U.S.A had applied to the Reserve Bank of India, seeking permission to open their liaison offices in India. In 1995, the RBI granted permission to open their respective liaison offices, with certain conditions. In the permission letter, it was specifically stated that the permission granted to the law firms is limited to the purpose of section 29 of the Foreign Exchange Regulation Act, 1973. Being aggrieved by the step taken by the RBI, a writ petition was filed in Bombay High Court by the petitioner. The main contention of the petitioner was that the foreign law firms could not be permitted to carry on practice either in litigious or non-litigious matters without being enrolled as advocates under the Advocates Act, 1961. However, the respondents argued that the Advocates Act, 1961 was applicable only to persons practicing in litigious matters and that the Act was enacted by Parliament in exercise of the powers conferred on it under entries 77 and 78 in list I of the Seventh Schedule of the Constitution, which refers to the organization of the Supreme Court and the high courts as well as the persons entitled to practice before these courts. Thus, the Act would apply only to persons practicing before the Supreme Court and the high courts and not to persons practicing in non-litigious matters.
II Judgment
After considering various judgments of the Supreme Court, the Bombay High Court refused to accept the contention that the Act was restrictive in nature. The court held that (i) Act applies not only to the persons practicing before the courts but also to persons who are practicing in non-litigious matters outside the courts and (ii) it applies to courts other than the high courts and the Supreme Court. Further, while observing the fundamental distinction between the professional activity and the activity of a commercial character, the court also held that the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under section 29 of the Foreign Exchange Regulation Act, 1973.
III Issues
1. Whether the Reserve Bank of India was justified in granting permission to the foreign law firms, under section 29 of Foreign Exchange Regulation Act, 1973 to open their respective liaison offices in India?
2. Whether the Advocates Act, 1961 intends to include both litigious and non-litigious practitioners?
3. Do you think that liberalising legal profession and permitting foreign law firms/ lawyers in India would enhance the quality of legal services, thereby facilitating the adoption of international best practices? If yes, should they be allowed to practice in India?
Suggested Readings
1. The Advocates Act, 1961.
2. Foreign Exchange Regulation Act, 1973.
3. Subodh Markandeya & Haroon S. Kably, The Foreign Exchange Regulation Act, 1973,
213-224 (1977).
4. S. K. Gupta & Ajaya Jain, Foreign Exchange: Law and Practice, 1.151-1.168 (1981).
5. O. N. Mohindroo v. Bar Council, AIR 1968 SC 888.
6. Ex. Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45.
7. C. K. Sharma Baruah, “Entry of Foreign Legal Consultants and Foreign Law Firms into India”, 27 (1) Indian Bar Review (2000) 1.
LL.M. (Two Year Course)
Wednesday Seminar X
(17.03.10)
(10.00am - 12.15 pm)
Lawyers Collective v. Bar Council of India & Others
Moderator : Farhat Jahan Rehmani
Presenter : Suparna Gaind
Discussants : Saurabh Singh and V. Elanchezhiyan
Rapporteur : Rahul Sharma
I. Facts
The genesis of the case can be traced back to when three foreign law firms, practicing in U.K/ U.S.A had applied to the Reserve Bank of India, seeking permission to open their liaison offices in India. In 1995, the RBI granted permission to open their respective liaison offices, with certain conditions. In the permission letter, it was specifically stated that the permission granted to the law firms is limited to the purpose of section 29 of the Foreign Exchange Regulation Act, 1973. Being aggrieved by the step taken by the RBI, a writ petition was filed in Bombay High Court by the petitioner. The main contention of the petitioner was that the foreign law firms could not be permitted to carry on practice either in litigious or non-litigious matters without being enrolled as advocates under the Advocates Act, 1961. However, the respondents argued that the Advocates Act, 1961 was applicable only to persons practicing in litigious matters and that the Act was enacted by Parliament in exercise of the powers conferred on it under entries 77 and 78 in list I of the Seventh Schedule of the Constitution, which refers to the organization of the Supreme Court and the high courts as well as the persons entitled to practice before these courts. Thus, the Act would apply only to persons practicing before the Supreme Court and the high courts and not to persons practicing in non-litigious matters.
II Judgment
After considering various judgments of the Supreme Court, the Bombay High Court refused to accept the contention that the Act was restrictive in nature. The court held that (i) Act applies not only to the persons practicing before the courts but also to persons who are practicing in non-litigious matters outside the courts and (ii) it applies to courts other than the high courts and the Supreme Court. Further, while observing the fundamental distinction between the professional activity and the activity of a commercial character, the court also held that the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under section 29 of the Foreign Exchange Regulation Act, 1973.
III Issues
1. Whether the Reserve Bank of India was justified in granting permission to the foreign law firms, under section 29 of Foreign Exchange Regulation Act, 1973 to open their respective liaison offices in India?
2. Whether the Advocates Act, 1961 intends to include both litigious and non-litigious practitioners?
3. Do you think that liberalising legal profession and permitting foreign law firms/ lawyers in India would enhance the quality of legal services, thereby facilitating the adoption of international best practices? If yes, should they be allowed to practice in India?
Suggested Readings
1. The Advocates Act, 1961.
2. Foreign Exchange Regulation Act, 1973.
3. Subodh Markandeya & Haroon S. Kably, The Foreign Exchange Regulation Act, 1973,
213-224 (1977).
4. S. K. Gupta & Ajaya Jain, Foreign Exchange: Law and Practice, 1.151-1.168 (1981).
5. O. N. Mohindroo v. Bar Council, AIR 1968 SC 888.
6. Ex. Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45.
7. C. K. Sharma Baruah, “Entry of Foreign Legal Consultants and Foreign Law Firms into India”, 27 (1) Indian Bar Review (2000) 1.
Tuesday, March 9, 2010
Seminar VI Update - Supreme Court and RTI
The Supreme Court has decided to appeal against the decision of Delhi High Court in Secretary General, Supreme Court of India v. Subash Chandra Agarwal. The high court decision was discussed in the House during Seminar VI. The issue pertaining to the current development was
"3. If the Supreme Court entertains the case, which involves its own Registry, do you think it is justified according to the principles of natural justice?"
The court's rationale for doing so is that the offices of the registrar and chief justice are different. How correct is this understanding? There is no constitutional provision which separates the office of the Chief Justice of India from its administrative wing. Further, the maxim nemo judex in parte sua also speaks of "reasonable apprehension of bias". Considering these aspects, what could be the way out?
It is also possible that a legislation incorporating the 1997 resolution will be enacted.
"3. If the Supreme Court entertains the case, which involves its own Registry, do you think it is justified according to the principles of natural justice?"
The court's rationale for doing so is that the offices of the registrar and chief justice are different. How correct is this understanding? There is no constitutional provision which separates the office of the Chief Justice of India from its administrative wing. Further, the maxim nemo judex in parte sua also speaks of "reasonable apprehension of bias". Considering these aspects, what could be the way out?
It is also possible that a legislation incorporating the 1997 resolution will be enacted.
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